Greenbaum v. United States Environmental Protection Agency

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Greenbaum v. Environmental No. 01-3132
ELECTRONIC CITATION: 2004 FED App. 0166P (6th Cir.) Protection Agency, et al.
File Name: 04a0166p.06
Decided and Filed: June 3, 2004
UNITED STATES COURT OF APPEALS Before: BOGGS, Chief Judge; and GUY and
FOR THE SIXTH CIRCUIT DAUGHTREY, Circuit Judges.
_________________ _________________

ROBERT GREENBAUM, X COUNSEL
Petitioner, -
- ARGUED: Keri N. Powell, EARTHJUSTICE LEGAL
- No. 01-3132 DEFENSE FUND, Washington, D.C., for
SIERRA CLUB, - Petitioner/Intervenor. Christopher B. Peak, UNITED
Intervenor, > STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
, for Respondent. ON BRIEF: J. Todd Hutchins, David S.
-
v. Baron, EARTHJUSTICE LEGAL DEFENSE FUND,
- Washington, D.C., for Petitioner. Christopher B. Peak,
- UNITED STATES DEPARTMENT OF JUSTICE,
UNITED STATES - Washington, D.C., for Respondent.
ENVIRONMENTAL -
- _________________
PROTECTION AGENCY , and
-
MICHAEL O. LEAVITT ,* - OPINION
Administrator, United States - _________________
Environmental Protection -
Agency, - BOGGS, Chief Judge. The Environmental Protection
Respondents. - Agency (“EPA”) redesignated Cuyahoga County, Ohio
- (hereinafter “Cleveland”) from nonattainment to attainment
N for particulate matter, specifically for particles known as PM10
(particles smaller than 10 microns in diameter), on
*
Pursuant to Fed. R. Ap p. P. 43(c ), Michael O. Le avitt is December 11, 2000. This was done pursuant to
automatically substituted for Christine Tod d W hitman. § 107(d)(3)(E) of the Clean Air Act, 42 U.S.C.
§ 7407(d)(3)(E). Robert Greenbaum, a Cleveland resident
On Petition for Review of an Order of the and Sierra Club member, and intervenor, Sierra Club
Environmental Protection Agency. (“Petitioners”), appeal the agency action. Petitioners argue
No. 40 CFR Parts 52 & 81. that the EPA illegally waived statutory requirements when it
redesignated the Cleveland area to attainment.
Argued: May 6, 2003

1
No. 01-3132 Greenbaum v. Environmental 3 4 Greenbaum v. Environmental No. 01-3132
Protection Agency, et al. Protection Agency, et al.

I. Statutory Framework States may ask the EPA to redesignate geographical areas
from nonattainment to attainment for a particular polluntant
The Clean Air Act (“CAA”) establishes a comprehensive once a NAAQS has been met. 42 U.S.C. § 7407(d)(3)(E).
program for controlling and improving the nation’s air quality The EPA must approve or deny such redesignation within
through both state and federal regulation. The administrator 18 months. 42 U.S.C. § 7407(d)(3)(D). The EPA may not
formulates National Ambient Air Quality Standards redesignate an area to attainment unless: (i) the EPA has
(“NAAQS”) that specify the maximum permissible determined that the area has attained the applicable NAAQS;
concentrations of certain air pollutants. The EPA initially (ii) the EPA has fully approved the applicable SIP under
designates geographic areas as “attainment” or § 7410(k); (iii) the EPA has determined that the improvement
“nonattainment” based on whether the areas meet the in air quality is due to permanent and enforceable reductions
pollution limits for a particular pollutant, pursuant to the in emissions resulting from implementation of the SIP and
NAAQS for that particular pollutant. PM10 nonattainment other required reductions; (iv) the EPA has fully approved a
areas are further classified as moderate or serious, depending maintenance plan under CAA § 175A that has been adopted
on the severity and persistence of the problem. The CAA by the State, which demonstrates that the area will maintain
requires states to submit a state implementation plan (“SIP”) the NAAQS for at least 10 years after redesignation; and
to the EPA, containing specific pollution control measures (v) the EPA has determined that the State containing the area
necessary for the attainment, maintenance, and enforcement seeking redesignation has met all applicable SIP requirements
of the NAAQS. The SIPs must be drafted to meet for that area under § 110 with respect to SIPs generally, and
requirements as outlined in CAA § 110(a)(2), 42 U.S.C. under Part D with respect to SIP provisions for nonattainment
§ 7410(a)(2). Part D of Title I of the CAA provides that a SIP areas. 42 U.S.C. § 7407(d)(3)(E).
for PM10 nonattainment areas (such as Cleveland before the
redesignation) must include a New Source Review (“NSR”). II. The Redesignation of Cleveland
NSR is a permit program for major new and modified sources
of pollutant. Basically, the program requires new or modified Cleveland was designated as a moderate nonattainment area
sources of pollutant to obtain a permit that requires certain in 1990. In 1991, Ohio submitted a SIP revision, which was
pollution controls and other measures to ensure that the new supplemented twice. The EPA partially approved and
or modified source will not exacerbate the pollution problem partially disapproved the plan. EPA approved the majority of
in the area. SIPs must also include programs for enforcement the submission on May 27, 1994, but disapproved parts of it
of the NSR provisions and other measures included in the because of various deficiencies. The EPA stated in its
plan. May 27, 1994 notice that it would address in separate
rulemakings the contingency measures required by
The EPA reviews and either approves or disapproves the § 172(c)(9)1 of the Act and the Part D NSR requirement.
SIP submissions. If the EPA approves the SIP, either wholly
or partially, the approved provisions become enforceable by
the federal government. If the EPA disapproves the SIP, then 1
the state is subject to sanctions, as well as federally imposed The plan must “provide for the implementation of specific measures
to be undertaken if the area fails to make reasonable further progress, or
clean air measures. to attain the national primary ambient air quality standard by the
attainment date applicable under this part.” 42 U.S.C. § 75 02(c)(9).
No. 01-3132 Greenbaum v. Environmental 5 6 Greenbaum v. Environmental No. 01-3132
Protection Agency, et al. Protection Agency, et al.

Ohio submitted a SIP revision, approved by the EPA, that Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979)). The EPA
addressed the contingency measures. Ohio submitted another stated that once an area is redesignated to attainment, a new
revision, correcting the deficiencies identified by the EPA in program called “prevention of significant deterioration”
May 1994, which the EPA subsequently approved. Thus, the (“PSD”) replaces NSR and governs compliance. Ibid.
SIP was fully approved, except for the Part D NSR. Compare 42 U.S.C. §§ 7502(c)(5), 7503 (requiring NSR for
SIPs governing nonattainment areas) with 42 U.S.C. § 7471
In the meantime, air quality monitoring in the Cleveland (requiring PSD in SIPs governing attainment areas).
area showed that it had achieved attainment of the particulate According to the EPA, “PSD requires that new sources
matter NAAQS. On May 22, 2000, Ohio submitted a request demonstrate that their construction will not increase ambient
to the EPA, asking it to redesignate Cleveland from concentrations significantly and will not result in
nonattainment to attainment. The EPA proposed concentrations above the air quality standard.” 65 Fed. Reg.
redesignating Cleveland on July 10, 2000. Approval and at 77,312. It concluded that “there would be trivial if any
Promulgation of Implementation Plans; Ohio, Designation of environmental value of applying nonattainment new source
Areas for Air Quality Planning Purposes; Ohio, 65 Fed. Reg. requirements in Cuyahoga and Jefferson Counties rather than
42,312 (July 10, 2000). In response, the Earthjustice Legal PSD requirements.” Ibid.
Defense Fund, representing the Ohio Chapter of the Sierra
Club, submitted numerous comments, some of which The EPA noted that another purpose of requiring the
addressed the lack of an NSR program in Ohio’s SIP. The approval of a Part D NSR program would be “to ensure that
EPA issued a rulemaking, redesignating Cleveland and NSR would become a contingency provision in the
addressing the submitted comments, on December 11, 2000. maintenance plan required for these areas by section
Approval and Promulgation of Implementation Plans and 107(d)(3)(E)(iv) and 175A(d).”2 It stated that “whether an
Designation of Areas for Air Quality Planning Purposes; approved NSR program must be included as a contingency
Ohio, 65 Fed. Reg. 77,308 (Dec. 11, 2000). provision depends on whether it is a ‘measure’ for the control
of the pertinent air pollutants.” Ibid. The EPA stated that the
In response to the comments with respect to the NSR term “measure” is not defined in section 175A(d) and that
program, the EPA stated that it “continues to believe that it Congress used the term differently in different provisions of
has fully approved the applicable SIP for Cuyahoga and
Jefferson Counties.” Id. at 77,311. It stated that it “believes
that Cuyahoga and Jefferson Counties may be redesignated to 2
attainment notwithstanding the lack of a fully-approved NSR 42 U .S.C. § 750 5a(d ) provides:
program meeting the requirements of the 1990 Clean Air Act
Each plan revision subm itted under this section shall contain
Amendments.” Id. at 77,312. The EPA continued, stating such contingency provisions as the Administrator deems
that it “believes that its decision not to insist on a fully necessary to assure that the State will promptly correct any
approved NSR program as a prerequisite to redesignation is violation of the standard which occurs after the redesignation of
justifiable as an exercise of the Agency’s general authority to the area as an attainment area. Such provisions shall include a
establish de minimis exceptions to statutory requirements” as requirement that the State will imp lement all mea sures with
respe ct to the control of the air pollutant concerned which were
“application of the statutory requirements would be of trivial contained in the State implementation plan for the area before
or no value environmentally.” Ibid. (citing Ala. Power Co. v. redesignation of the area as an attainment area.
No. 01-3132 Greenbaum v. Environmental 7 8 Greenbaum v. Environmental No. 01-3132
Protection Agency, et al. Protection Agency, et al.

the CAA. “This indicates that the term is susceptible to more III. Standard of Review
than one interpretation and that EPA has the discretion to
interpret it in a reasonable manner in the context of section This court reviews the EPA’s action with deference, and
175A.” Ibid. Therefore, “EPA believes it is reasonable to should affirm unless the action was “arbitrary, capricious, an
interpret ‘measure,’ as used in section 175A(d), not to include abuse of discretion, or otherwise not in accordance with law.”
NSR.” Ibid. 5 U.S.C. § 706 (2)(A); Southwestern Penn. Growth Alliance
v. Browner, 144 F.3d 984, 988 (6th Cir. 1998). In Chevron,
Finally, the EPA concluded that Ohio’s maintenance plan U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
required by § 175A(d) included sufficient contingency (1984), the Supreme Court established a two-step process for
measures to correct any future violation of the NAAQS. reviewing an agency’s interpretation of a statute it
administers. If “Congress has directly spoken to the precise
Petitioners argue that § 107(d)(3)(E) of the CAA is explicit question at issue . . . the court . . . must give effect to the
in stating the requirements that must be met before the EPA unambiguously expressed intent of Congress.” Id. at 842-43
may redesignate a nonattainment area to attainment. One (emphasis added). If Congress has been either silent or
requirement is that the EPA fully approve “the applicable ambiguous about the “precise question at issue,” then a
implementation plan for the area under section [7410(k)] reviewing court must defer to the agency’s interpretation if it
. . . .” 42 U.S.C. §§ 7407(d)(3)(E), 7505a. At the time of is reasonable. Ibid. “To uphold EPA's interpretation of a
redesignation, Ohio’s SIP did not contain a fully approved or statute, the Court ‘need not find that it is the only permissible
approvable NSR program as required by § 7410(a)(2)(C) and construction that EPA might have adopted but only that
Part D, and as required as part of Cleveland’s maintenance EPA's understanding of this very 'complex statute' is a
plan by § 7505a. Petitioners argue that the EPA violated the sufficiently rational one to preclude a court from substituting
express and unambiguous requirements of 42 U.S.C. its judgment for that of EPA.’” Southwestern Penn. Growth
§§ 7404(d)(3)(E)(ii), (iv), (v), and 7505a. They argue that the Alliance, 144 F.3d at 988 (quoting Chem. Mfrs. Ass'n v.
EPA has misstated the scope of its authority to carve out de Natural Res. Def. Council, Inc., 470 U.S. 116, 125 (1985)).
minimis exceptions, and has failed to carry its burden of
showing that such an exception applies in this case. IV. Analysis
Moreover, they argue, enforcing the CAA’s NSR requirement
will not lead to absurd results, noting that more stringent A. De minimis authority
requirements are imposed on an area under an NSR program
than are imposed by a PSD program. Petitioners also “Unless Congress has been extraordinarily rigid, there is
maintain that the EPA’s position that the term “measure” does likely a basis for an implication of de minimis authority to
not include the NSR program is untenable and its explanation provide exemption when the burdens of regulation yield a
of its method in reaching this conclusion is contorted. gain of trivial or no value.” Ala. Power Co. v. Costle, 636
Finally, petitioners argue that the EPA illegally approved a F.2d 323, 360-61 (D.C. Cir. 1979). “Determination of when
maintenance plan that lacks contingency measures adequate matters are truly de minimis naturally will turn on the
to correct promptly any NAAQS violation that might occur assessment of particular circumstances, and the agency will
after redesignation. bear the burden of making the required showing.” Id. at 360.
No. 01-3132 Greenbaum v. Environmental 9 10 Greenbaum v. Environmental No. 01-3132
Protection Agency, et al. Protection Agency, et al.

The EPA argues that the Part D NSR program is to redesignation as the circumstances have changed, and we
inapplicable to attainment areas, so that the requirement can no longer afford petitioners any meaningful relief on this
disappears upon redesignation. After redesignation, Part D point. See S. Utah Wilderness Alliance v. Smith, 110 F.3d
NSR is replaced by a PSD, another permitting program 724, 727 (10th Cir. 1997); Chamber of Commerce of United
designed to ensure maintenance of the NAAQS in attainment States of America v. United States Dep’t of Energy, 627 F.2d
areas. Compare 42 U.S.C. §§ 7502(c)(5), 7503 (requiring 289, 291 (D.C. Cir. 1980) (“In some circumstances, a
NSR for SIPs governing nonattainment areas) with 42 U.S.C. controversy, not actually moot, is so attenuated that
§ 7471 (requiring PSD in SIPs governing attainment areas). considerations of prudence and comity for coordinate
Therefore, requiring NSR approval prior to redesignation branches of government counsel the court to stay its hand, and
would provide de minimis environmental benefit. to withhold relief it has the power to grant.”).
The petitioners argue that that the NSR requirement is rigid, However, the approval of Ohio’s NSR program does not
and the EPA’s action was a departure from the statute. They moot the rest of the issues on appeal. Petitioners argue that
argue that the court in Alabama Power made it clear that the because of the belated approval, the EPA may now claim that
focus of de minimis authority is whether a statute’s “literal the NSR program was not contained in the implementation
terms lead to absurd or futile results.” Id. at 360 n.89 plan before redesignation, and is therefore not a required
(internal quotation marks and citations omitted). They argue maintenance contingency measure within the meaning of
that the clear Congressional mandate in this case does not § 175A.3 Our decision in this case declining to address the
lead to an absurd result and that the EPA did not have propriety of redesignation absent an approved NSR program
authority to depart. They urge that requiring an NSR program is in no way an invitation for the EPA to circumvent the
in Cleveland furthers the Act’s purpose because it provides mandates of the CAA. The NSR should have been approved
much greater assurance than does a PSD program that the area before redesignation, and for the purposes of addressing
will maintain its NAAQS. petitioners’ claims regarding § 175A, we will treat it as if it
had been.
It is not necessary in this case to reach the question of
whether the EPA exceeded or misstated its de minimis B. Interpretation of the word “measure”
authority to depart from the statute. The EPA approved
Ohio’s Part D NSR program in a final rule issued January 10, Section 175A requires that when a state submits a request
2003. Approval and Promulgation of Implementation Plans; for redesignation of an area to attainment, it must submit a
Ohio, 68 Fed. Reg. 1366 (Jan 10, 2003). The deadline for SIP revision to provide for the maintenance of the NAAQS
challenges to the rule expired March 11, 2003, and none were for at least ten years after redesignation. 42 U.S.C.
filed. If we were to remand the redesignation to the EPA, it § 7505a(a). These provisions must require the state to
would result in a duplicative rulemaking to redesignate the
Cleveland area once again. The NSR program would not be 3
implemented as approved, as NSR programs are only required “Such provisions sh all include a req uirement that the State will
in nonattainment areas. Under the doctrine of prudential implement all measures with respect to the control of the air pollutant
concerned which were contained in the State implementation plan for the
mootness, we decline to reach the specific issue of whether area before redesignation of the area as an attainment area.” 42 U.S.C.
Ohio’s NSR program should have been fully approved prior § 75 05a (d) (emph asis added ).
No. 01-3132 Greenbaum v. Environmental 11 12 Greenbaum v. Environmental No. 01-3132
Protection Agency, et al. Protection Agency, et al.

“implement all measures with respect to the control of the air statute as a symmetrical and coherent regulatory scheme,
pollutant concerned which were contained in the State and fit, if possible, all parts into an harmonious whole.
implementation plan for the area before redesignation of the
area as an attainment area.” 42 U.S.C. § 7505a(d). FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
132-33 (2000) (internal quotation marks and citations
The petitioners maintain that the NSR program is a required omitted).
pollution control measure, and therefore should be among the
contingency measures required by the CAA. The EPA stated The EPA argues that Congress did not speak directly to the
that it “believes it is reasonable to interpret ‘measure,’ as used definition of the word “measure” in § 175A. Although the
in section 175A(d), not to include NSR.” 65 Fed. Reg. at statute requires implementation of “all measures with respect
77,312. As the NSR program is not a pollution control to the control of the air pollutant concerned” that were in the
“measure,” it is not among the contingency measures required nonattainment SIP, the EPA notes that it is apparent that
by the CAA. Congress meant for some aspects of the nonattainment SIP to
be measures to be included as contingency measures in the
The substance of the EPA’s argument relies upon statutory maintenance plan, and some not. It argues that § 175A does
construction and its interpretation of the meaning of the word not indicate which provisions are to be included, and so it had
“measure” as used in § 175A. Under the deferential Chevron to turn to other parts of the statute. It states that it turned to
standard of review, we must first determine if the statute is § 110, which lists the required SIP provisions. Section 110
ambiguous with respect to the precise issue in question. If so, requires “control measures” as components of a SIP.
we must defer to the agency’s interpretation if it is reasonable. 42 U.S.C. § 7410(a)(2)(A). The EPA argues that
Chevron, 467 U.S. at 842-43. However, “if the apparent subparagraph A requires a SIP to include “enforceable
statutory ambiguity can be resolved using ‘traditional tools of emission limitations and other control measures, means, or
statutory construction,’” an agency’s interpretation is not techniques . . . as may be necessary or appropriate to meet the
entitled to Chevron deference. Mid-America Care Found. v. requirements of [the Act].” Ibid. Subparagraph C requires
Nat’l Labor Relations Bd., 148 F.3d 638, 642 (6th Cir. 1998) the SIP also to include “a program to provide for the
(quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 446 (1987)); enforcement of the measures described in subparagraph (A),
see also Chevron, 467 U.S. at 843 n.9. and regulation of the modification and construction of any
stationary source . . . , including a permit program as required
In determining whether Congress has specifically in parts C and D of this subchapter.” Id. at § 7410(a)(2)(C).
addressed the question at issue, a reviewing court should The EPA argues that if the Part D NSR permit program were
not confine itself to examining a particular statutory among the control measures mentioned in subparagraph A,
provision in isolation. The meaning – or ambiguity – of the separate reference to it in subparagraph C would be
certain words or phrases may only become evident when unnecessary. The EPA concluded that the “measures with
placed in context. It is a fundamental canon of statutory respect to the control of the air pollutant concerned” in
construction that the words of a statute must be read in section 175A(d) and the “control measures” in section
their context and with a view to their place in the overall 110(a)(2)(A) are the same, and do not include the Part D NSR
statutory scheme. A court must therefore interpret the permit program.
No. 01-3132 Greenbaum v. Environmental 13 14 Greenbaum v. Environmental No. 01-3132
Protection Agency, et al. Protection Agency, et al.

Petitioners argue that the EPA’s position is untenable, and always valid or applicable.” Sullivan v. Stroop, 496 U.S. 478,
its statutory interpretation tortured. They argue that the term 489 (1990) (Blackmun, J., dissenting). If the two provisions
“measure” is unambiguous in meaning and unquestionably are meant to serve the same purpose, the rule might apply, but
includes NSR programs, citing Webster’s Collegiate if not, the applicability of the rule might be limited. Id. at
Dictionary (“a step planned or taken as a means to an end”). 489-90 (citing Helvering, 293 U.S. at 87 (“[S]ince most
They list several of the NSR program’s pollution controls, words admit of different shades of meaning, susceptible of
and assert that, therefore, the NSR program is “a step planned being expanded or abridged to conform to the sense in which
or taken as a means” to the end of controlling and reducing air they are used, the presumption readily yields [when] the
pollution, and is therefore a measure. They argue that the words, though in the same act, are found in . . . dissimilar
EPA applied an aid to statutory construction to a different connections.”)). As the apparent statutory ambiguity cannot
section of the statute to create an ambiguity in § 175A where readily be resolved using traditional tools of statutory
none otherwise exists. construction, we apply Chevron deference to the agency’s
interpretation.
First, we note that there may be no ambiguity, but for a
different reason than the one offered by the Petitioners. The EPA’s interpretation of the word “measure” in § 175A
According to 42 U.S.C. §§ 7502(c)(5), 7503, SIPs governing is reasonable, and we will not substitute our judgment for that
nonattainment areas must include NSR programs. Under of the federal agency. The “words of a statute must be read
42 U.S.C. § 7471, by contrast, SIPs governing attainment in their context and with a view to their place in the overall
areas must include PSD programs. Thus, although NSR was statutory scheme.” Davis v. Mich. Dep’t of Treasury, 489
(or should have been) in the pre-existing SIP, it would make U.S. 803, 809 (1989). Section 175A(d) requires
little sense for it to be included in the post-attainment SIP, as implementation of “all measures with respect to the control of
the Clean Air Act statutes explicitly states that attainment the air pollutant concerned” contained in the nonattainment
area SIPs must include a PSD program. Yet, even if the clear SIP. It was entirely permissible, and indeed logical, for the
directive of § 7471 does not establish that “measure” EPA to look to § 110 to determine the meaning of the word
unambiguously excludes NSR, the potential statutory conflict “measure” in § 175A as § 110 lists the provisions required to
is enough to create an ambiguity as to the proper scope of be included in a nonattainment SIP. Petitioners argue this
“measure” in § 175A. was done merely to create an ambiguity where one did not
otherwise exist. However, “[t]he meaning – or ambiguity –
Before reaching that conclusion, however, we must of certain words or phrases may only become evident when
determine whether “traditional tools of statutory construction” placed in context.” Brown & Williamson Tobacco Corp., 529
provide resolution to the ambiguity. Chevron, 467 U.S. at U.S. at 121 (citing Brown v. Gardner, 513 U.S. 115, 118
843 n.9. “The normal rule of statutory construction assumes (1994) (“Ambiguity is a creature not of definitional
that ‘identical words used in different parts of the same act are possibilities but of statutory context.”)).
intended to have the same meaning.’” Sorenson v. Sec’y of
Treasury, 475 U.S. 851, 860 (1986) (quoting Helvering v. Likewise, the EPA’s argument that the reference to the Part
Stockholms Enskilda Bank, 293 U.S. 84, 87 (1934)). D NSR program in subparagraph C of § 110 would be
However, as the Court has also noted, “[l]ike all such surplusage if it were among the control measures mentioned
maxims, . . . , this is merely a general assumption, and is not in subparagraph A of § 110 is reasonable. 42 U.S.C.
No. 01-3132 Greenbaum v. Environmental 15 16 Greenbaum v. Environmental No. 01-3132
Protection Agency, et al. Protection Agency, et al.

§ 7410(a)(2)(A) & (C). Subparagraph C requires a revision to provide for the maintenance of the NAAQS for at
nonattainment SIP to contain “a program to provide for the least ten years after the redesignation. 42 U.S.C. § 7505a(a).
enforcement of the measures described in subparagraph (A),
and regulation of the modification and construction of any Section 175A(d) provides:
stationary source within the areas covered by the plan . . . .”
42 U.S.C. § 7410(a)(2)(C) (emphasis added). The latter Each [maintenance plan] submitted under this section
clause of the sentence refers to the Part D NSR permit shall contain such contingency provisions as the
program, while the former refers to the measures described in Administrator deems necessary to assure that the State
subparagraph A. It was not unreasonable for the EPA to will promptly correct any violation of the standard which
conclude that given this structure of § 110, that Congress occurs after the redesignation of the area as an attainment
intended that the term “measure” not include the Part D NSR area.
permit program.
42 U.S.C. § 7505a(d) (emphasis added). The language clearly
We also find persuasive the EPA’s argument that the very indicates that Congress expressly delegated authority to the
nature of the NSR permit program supports its interpretation EPA to determine what contingency measures are necessary.
that it is not intended to be a contingency measure pursuant to We give such determinations by regulation “controlling
§ 175A(d). The contingency measures required by § 175A weight unless they are arbitrary, capricious, or manifestly
require immediate emission reductions on existing sources. contrary to the statute.” Chevron, 467 U.S. at 844.
The beginning of the paragraph reads: “Each plan revision Petitioners argue that the EPA’s determination in this case is
submitted under this section shall contain such contingency all three. We disagree.
provisions as the Administrator deems necessary to assure
that the State will promptly correct any violation of the In response to comments regarding the maintenance plan,
standard which occurs after the redesignation of the area as an the EPA stated that “Ohio’s enforcement program,
attainment area.” 42 U.S.C. § 7505a(d). The NSR program commitment of resources, and legal authority are adequate
would have no immediate effect on emissions. It is a and assure that measures in the SIP (including maintenance
permitting program under which those who want to construct plan measures) will be implemented.” 65 Fed. Reg. 77,315.
a new major pollutant source, or modify an existing major It noted that the Ohio SIP contained contingency measures
pollutant source, must acquire a permit. 42 U.S.C. § 7503. that had been approved by the EPA on May 6, 1996. Ibid.
The program has no effect on existing sources, which would (citing Approval and Promulgation of Implementation Plans;
be the cause of any violation of the standard. We therefore Ohio, 61 Fed. Reg. 20,139 (May 6, 1996)). When the EPA
defer to the EPA’s reasonable definition of the word approved these contingency measures, the EPA stated that
“measure” in § 175A. Ohio’s contingency measures provided “for a reasonable level
of continued progress toward the attainment goal during an
C. The maintenance plan interim period between any prospective determination that the
SIP has failed to . . . provide for timely attainment of the
When a state submits to the EPA a request for NAAQS and the additional formal air quality planning
redesignation, § 175A requires that the state submit a SIP following the determination.” 61 Fed. Reg. at 20,141.
No. 01-3132 Greenbaum v. Environmental 17 18 Greenbaum v. Environmental No. 01-3132
Protection Agency, et al. Protection Agency, et al.

In its rulemaking redesignating Cleveland as an attainment Petitioners claim that Ohio’s maintenance plan is woefully
area, the EPA stated that “[s]ection 175A(d) does not dictate inadequate and they raise a number of objections as to why
that the maintenance plan contingency measures be sufficient the plan does not come close to fulfilling the statutory
by themselves to correct any violation of the standard. requirements. First, they argue that the statute requires that
Instead, these measures need only be sufficient in EPA’s the contingency measures themselves should be sufficient to
judgment to help assure that the State will promptly correct assure correction of a violation, and not just “help” assure a
any future violation.” 65 Fed. Reg. at 77,315. It reasoned correction. They add that the statute does not authorize the
that PM10 is emitted from a variety of sources, and therefore EPA to use other measures outside the maintenance plan to
it could not “reasonably expect maintenance plan contingency assure these corrections. Second, Petitioners contend that the
measures by themselves to address all possible future EPA has not identified a schedule for implementing the
violations.” Ibid. The EPA also reasoned that it must make contingency measures, nor has it identified triggers or specific
a judgment call as to which types of future violations are most indicators that would be used to determine when contingency
likely and consider “other factors which help assure that the measures need to be implemented. In support of this
State will correct any future violations.” Ibid. The EPA argument, they cite a September 4, 1992 memorandum to
identified as additional factors “provisions in Ohio’s various EPA air pollution directors from the Director of the
regulations that allow the State to impose additional source Air Quality Management Division of the EPA, John Calcagni,
controls if violations occur and provisions in the Clean Air entitled Procedures for Processing Requests to Redesignate
Act Section 110(h) (provisions for SIP calls).” Ibid. Areas to Attainment (the “Calcagni Memorandum”). They
add that the EPA’s assertion that a violation of the NAAQS
It concluded that these contingency measures, approved is the trigger for implementation of the contingency measures
May 6, 1996 and adopted pursuant to § 172(c)(9),4 were is not sufficient. Third, they argue that the word “promptly”
adequate to satisfy § 175A(d), and that these “contingency in § 175A(d) reflects Congressional intent that the corrective
measures . . . in combination with other factors, assure that measures be “immediately available in the event the area once
Ohio will promptly correct any future violations in these again exceeds the standard.” H.R. Rep. No. 490, 101st Cong.,
areas.” Ibid. 2d. Sess., pt. 1 at 226-27 (1990). According to Petitioners,
however, the contingency measures in question would not be
implemented until either the state or the EPA made a
determination that the area has violated the NAAQS. Fourth,
Petitioners allege that the EPA offered no explanation of the
4 factual bases upon which it made its determination that
Section 17 2(c)(9) reads:
Ohio’s maintenance plan was adequate and simply “deemed”
Such plan shall provide for the im plem entation of specific the requirements of § 175A(d) to have been met.
measures to be undertaken if the area fails to make reasonable
further progress, or to attain the national prim ary ambient air With respect to Petitioners’ claim that these measures are
quality standard by the attainment date applicable under this insufficient, we agree with the EPA’s conclusion that Ohio’s
part. Such measures shall be included in the plan revision as maintenance plan is in fact sufficient to fulfill the
contingency measures to take effect in any such case without
further action by the State or the Administrator. requirements of § 175A. We find persuasive its reasoning
42 U.S.C. § 75 02(c)(9). that it cannot expect Ohio to provide contingency measures
No. 01-3132 Greenbaum v. Environmental 19 20 Greenbaum v. Environmental No. 01-3132
Protection Agency, et al. Protection Agency, et al.

that are capable of addressing any imaginable violation from of severity, and caused by any number of sources of
the mildest to the most severe. The EPA argues that Congress particulate matter. The EPA argues that it had to judge which
clearly contemplated a situation in which the federally- types of violations were most likely, and judged Ohio’s
controlled contingency measures contained in the maintenance plan in that context. The Administrator has been
maintenance plan might not be sufficient to correct a violation granted broad discretion by Congress in determining what is
of the NAAQS. Pursuant to 42 U.S.C. § 7410(k)(5), the EPA “necessary to assure” prompt correction. The EPA has
is authorized to require a state to revise an approved SIP if it approved Ohio’s maintenance plan, concluding that its
finds that it has become substantially inadequate to maintain contingency measures provide a means to deal with likely
the NAAQS. Moreover, § 175A allows the EPA, in its violations. We do not believe that this determination is
discretion, to require the state to submit a revised SIP should “arbitrary, capricious, or manifestly contrary to the statute.”
the area fail to maintain the NAAQS. Chevron, 467 U.S. at 844.
“[A]ny final determination regarding the adequacy of a As the EPA notes, the other factors (such as Ohio’s general
maintenance plan will be made ‘in light of the particular environmental regulations) it included in its December 11,
circumstances facing the area proposed for redesignation and 2000 rulemaking are available should the contingency
based on all relevant information available at the time.’” Wall measures by themselves fail to correct the violation.
v. EPA, 265 F.3d 426, 431 (6th Cir. 2001) (quoting Calcagni Petitioners respond that if Congress had thought that the
Memorandum, at 8). Ohio’s SIP contains contingency state’s general regulatory authorities would be adequate to
measures approved May 6, 1996. The EPA deemed these assure the prompt correction of a violation, it would not have
measures as sufficient to assure that Ohio would reach required a maintenance plan to contain specific contingency
attainment, which it did, and sufficient to assure that it would measures that a state is obligated to implement in the event of
promptly correct any violation of the standard after a violation. However, the EPA stated that the contingency
redesignation. The EPA stated that other factors will help measures themselves are sufficient to “help assure that the
assure prompt correction. Petitioners argue that the State will promptly correct any future violation,” and that the
contingency measures themselves are not sufficient to do so other factors in addition to the contingency measures will
and argue that under the EPA’s logic, a state could submit a “assure that Ohio will promptly correct any future violations
plan with no contingency provisions and merely assert that in these areas.” 65 Fed. Reg. at 77,315. Therefore, the EPA
other measures will correct the violation. However, the EPA stated that the contingency measures themselves were
did not do so in the present case. The contingency measures sufficient to “help assure” prompt correction, and that the
submitted clearly contemplate future violations, along with additional factors also were available to “help assure” prompt
the possibility that Ohio could again be subject to strict correction. Again, without knowledge of the severity or
regulations. source of a NAAQS violation, any combination of
contingency measures cannot assure prompt correction to an
The EPA is correct when it states that no maintenance plan absolute certainty, and can only be promised to “help assure”
could, or should be expected to, cover every possible prompt correction.
contingency. Any maintenance plan included in a SIP could
never “assure that the State will promptly correct any The quarrel between whether the state’s measures will
violation of the standard.” Violations could be of any degree “assure” or only “help assure” corrections of violations is
No. 01-3132 Greenbaum v. Environmental 21 22 Greenbaum v. Environmental No. 01-3132
Protection Agency, et al. Protection Agency, et al.

largely a semantic one. The approved maintenance plan is § 172(c)(9), which requires that the measures take effect
based, in part, on measures that Ohio has committed to without further action by the State or the EPA, which the EPA
implement in case of need, and that, ultimately, the EPA can interprets to mean “that no further rulemaking activities by
compel. On that state of facts, whether the EPA’s own the State or EPA would be needed to implement the
measures are said to “assure” or only “help assure,” the contingency measures.” State Implementation Plans; General
essential fact is that the remedial measures will occur in case Preamble for the Implementation of Title I of the Clean Air
of need, and that the EPA has deemed those measures Act Amendments of 1990, 57 Fed. Reg. 13,498, 13,512
(collectively) as adequate to remedy any future violation. (April 16, 1992). The Calcagni Memorandum also states that
“[f]or the purposes of section 175A, a State is not required to
Petitioners’ second argument was that the maintenance plan have fully adopted contingency measures that will take effect
lacked both schedules for implementing the contingency without further action by the State in order for the
measures and triggers or other specific indicators that would maintenance plan to be approved.” Calcagni Memorandum
be used to determine if the contingency measures needed to at 12. Thus, no pre-determined schedule for adoption of the
be implemented. The EPA disagrees. The EPA explains that measures is necessary in each specific case.
Ohio added contingency measures to regulate industrial
sources in Cleveland because such sources were the principal We also reject Petitioners’ third argument and find that the
cause of particulate matter nonattainment. 61 Fed. Reg. at EPA’s interpretation of what “promptly” means is reasonable.
20,140; Approval and Promulgation of Implementation Plans; It is unclear how petitioners expect the EPA to recognize a
Ohio, 58 Fed. Reg. 41,218 (Aug. 3, 1993). It has stated that, violation unless it is able to make a determination based on
in the event of a violation of the NAAQS, five industrial the data collected from the air quality monitoring sites and its
source facilities in the Cleveland area are required to reduce subsequent evaluation. Petitioners assert that there is no
particulate emissions by either 15% or 25%, depending on the requirement that the EPA make this determination
severity of the violation. 61 Fed. Reg. at 20140; OAC 3745- expeditiously. However, there is no indication in the record
17-14(C); OAC 3745-17-02. The EPA states that, once a that the EPA or the Ohio EPA will not make such a
violation of the NAAQS has occurred, the principal determination when justified by its data collection and
contributors of particulate matter are required to reduce evaluation.
emissions, and that this is sufficient.
Finally, Petitioners argue that the EPA did not meet
With this background in mind, we turn to the Petitioners’ minimal administrative law requirements by failing to base its
specific allegations about how and when these measures determination upon facts in the administrative record. They
would take effect in the event of a violation. With respect to argue that the EPA did not provide any explanation for its
triggers, the EPA correctly argues that monitored violations action. However, in the December 11, 2000 rulemaking, the
of the NAAQS can be possible triggers. Calcagni Memo at EPA referenced the May 6, 1996 rulemaking, which approved
12. The contingency measures may be triggered upon the contingency measures contained in Ohio’s SIP. The
notification by the Ohio EPA or the United States EPA of a May 6 rulemaking stated that the implementation of the
determination by either agency that a violation has occurred. contingency measures contained within “would result in an
With respect to schedules, the EPA correctly explains that the emissions reduction of 34 pounds of PM per hour in
contingency measures were initially developed pursuant to Cuyahoga County.” 61 Fed. Reg. at 20,139. In the
No. 01-3132 Greenbaum v. Environmental 23 24 Greenbaum v. Environmental No. 01-3132
Protection Agency, et al. Protection Agency, et al.

rulemaking approving redesignation, the EPA stated that “[a] sources to reduce particulate emissions should a future
variety of sources emit PM10, so nonattainment can occur for violation occur. Therefore, we do not believe that the EPA
a variety of reasons.” 65 Fed. Reg. at 77,315. has committed a “clear error of judgment” and do not
substitute our judgment for that of the agency.
We must “‘consider whether the decision was based on a
consideration of the relevant factors and whether there has V. Conclusion
been a clear error of judgment . . . . Although this inquiry into
the facts is to be searching and careful, the ultimate standard For all of the reasons set forth above, we uphold the EPA’s
of review is a narrow one. The court is not empowered to redesignation of Cuyahoga County, Ohio from nonattainment
substitute its judgment for that of the agency.’” Bowman to attainment for particulate matter.
Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S.
281, 285 (1974) (quoting Citizens to Preserve Overton Park
v. Volpe, 401 U.S. 402, 416 (1971)). The agency must
articulate a “rational connection between the facts found and
the choice made.” Burlington Truck Lines, Inc. v. United
States, 371 U.S. 156, 168 (1962). “While we may not supply
a reasoned basis for the agency's action that the agency itself
has not given, we will uphold a decision of less than ideal
clarity if the agency's path may reasonably be discerned.
Bowman Transp., Inc., 419 U.S. at 286 (internal citation
omitted).
Although the EPA’s rationale is less than completely clear
in its December 11, 2000 rulemaking, its “path may
reasonably be discerned.” Ibid. The May 6, 1996
rulemaking, adopting the contingency measures contained in
Ohio’s SIP, and clearly referenced in the December 11, 2000
rulemaking, extensively discusses the Ohio EPA’s interaction
with the “principal facilities in the PM nonattainment areas,”
61 Fed. Reg. at 20,140, and Ohio’s success in attaining
sufficient reductions from several of those sources in the
event that the area failed to “timely attain the applicable
NAAQS.” Ibid. While it is true that the earlier rulemaking
was somewhat limited in scope in that it focused primarily on
particular industries, the EPA had previously determined that
these industrial sources were primarily responsible for the
excessive particulate emissions in Cleveland. In addition, and
as noted above, the contingency measures require these major